Workplace Investigation getting it right for first time every time – Recently an article appeared in the Brisbane times that alleged that a cadet journalist was dismissed unfairly, the headline reading – ‘This is disgusting’: Seven Network under fire after cadet dismissed”Link to article

Please note, this post is based on the information contained in the article no judgement is made on the validity of the content and to our knowledge the allegation made against Channel Seven have not been tested. Channel Seven has since denied the allegations and the matter was settled out of Court in February.

This article considers the general principals of procedural fairness. regardless of whether or not Channel Seven did the right things here are some tips about procedural fairness in dealing with misconduct matters.

Some of the issues raised in the article included;
“When Ms Taeuber asked for the statement of the person making the allegations of bullying against her, the HR manager said: “OK, so how do we want to plan your exit, Amy? I do understand that we don’t want to make it humiliating for you.”

This may fall under the FWA procedural fairness guideline – the right to know

The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;

s387 (b) whether the person was notified of the reason for the allegation of misconduct.

It is important that a person accused of wrongdoing or misconduct has the right to know what it is alleged that they have done. This should be done at the earliest possible opportunity in as much detail as is reasonable.

The right be heard or to respond to an allegation/complaint or performance issue is referenced in the Fair Work Act 2009 – s387 – criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

s387 (C)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

When a complaint or allegation is made against an employee or that an employee’s behaviour or performance is unsatisfactory, that employee has the right to respond or put their side of the story or version of events forward.

In the case of a complaint or allegation, after the employee has been advised of the issue they must be given sufficient time to consider the complaint before being asked to respond. The time will depend on the seriousness and perhaps the number of issues. We recommend putting yourself in their place and provide sufficient time.

The article also stated that;

“The audio recording puts a spotlight on Seven’s treatment of its employees. Early in the meeting, the HR manager had ordered Ms Taeuber’s support person, chief of staff Lesley Johns, leave the room. When Ms Johns began to protest, she was cut off.”

This may fall under the FWA procedural fairness guideline – the right to have a support person present

The right to have a support present during interviews that may result in disciplinary action being taken against the employee is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

s387 (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Workplace Investigation getting it right for first time every time – The investigation into workplace misconduct and complaints requires experience and expertise in understanding of the process, investigative interviewing, procedural fairness, the rules of evidence and relevant legislation. If you don’t have this or the time to conduct a thorough investigation we recommend one of three options;

  1. Call an expert – http://awpti.com.au/ or contact us on 02 9674 4279 or enquiries@awpti.com.au
  2. Get some training, we highly recommend – http://awpti.com.au/investigation-training/
  3. If you still want to ‘Do it Yourself’ without training we have a number of products that can assist – http://awpti.com.au/hr-products/

Don’t take the risk of getting in wrong, it can be costly.

AWPTI – Workplace training Sydney and through-out NSW and national wide
Misconduct training, bullying training, harassment training & sexual harassment training, dispute & grievance resolution training, management training.

http://awpti.com.au/training/

workplace training Sydney, workplace training NSW, workplace training QLD, workplace training Victoria, misconduct training, bullying training Sydney, Workplace training harassment, sexual harassment training, grievance training, management training

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators.

Unfair dismissal serious misconduct workplace investigation – When considering dismissing an employee for serious misconduct, employers must bare in mind the following;

  1. Does the alleged behaviour that resulted dismissal reach the threshold of serious misconduct
  2. Have you conducted an investigation – do yo have the evidence to support the decision to terminate?
  3. Does the punishment fit the crime?

More details of another case there the issue of the punishment fitting the crime was considered by the FWC – http://awpti.com.au/punishment-must-fit-crime/

More details about summary dismissal can be found here – http://awpti.com.au/summary-dismissal-2/

Recently at the fair Work Commission, the depot manager at an Australian courier company was unfairly sacked after he was accused of being responsible for the breach of a worldwide embargo on the J.K. Rowling book Fantastic Beasts and Where to Find Them, the Fair Work Commission has found.

The FWC heard that XL Express Pty Ltd sacked the depot manager for serious misconduct last November when he was told that the delivery of embargoed J.K. Rowling books a day early had damaged the company’s reputation. XL Express blamed the Brisbane depot manager for the embargo breach, a claim he denied.

Describing the delivery of embargoed freight as “the pinnacle of its operations”, the company said a November 17, 2016 embargo on the J.K. Rowling novel was breached on November 16.

Under cross-examination, the company agreed it had not lost its contract with the book distributor and had not been financially penalised for the embargo breach. It claimed a forklift driver removed the embargo consignment from the embargo area and that another staff member removed the consignment note from an embargo file. The depot manager was accused of failing to ensure staff followed set procedures for embargo releases.

The depot manager told the FWC that the error with the sorting and handling of the consignment note happened on November 15 when he was on leave.  He said he was unaware that someone had “accessed his office, gained access to the box where the embargo labels were kept and also retrieved the con-note from the embargo con-notes and had labelled the freight”.

He said no fewer than six people had taken these actions on the day he was absent from the depot.

The commission heard that the depot manager claimed the error that resulted in the embargo breach on November 16 “was not through any fault on his part”.

The depot manager, who had been employed from May 2008 until late November last year, was dismissed on the grounds of serious misconduct after a meeting in which he was also accused of workplace bullying. He said it was the first time the allegations had been put to him. He was also accused of wrongly claiming he had received training in the company’s anti-bullying procedures.

Fair Work Commission deputy president Ingrid Asbury’s judgment said XL Express had no documents and called no evidence to support the bullying allegations.

The depot manager told the commission he was not paid his long service leave entitlements because his job was terminated for misconduct.

In finding the dismissal was unfair, Deputy President Asbury ordered XL Express to pay the sacked employee $48,432 in wages, less tax and $6555 in superannuation contributions.

The commission found that although it was not a valid reason for his dismissal, the depot manager’s responsibility for depot operations “meant that he had a role in the series of events that led to the embargo breach”.

It said the dismissal was harsh because it was disproportionate to the misconduct in relation to the embargo breach.

It is important to consider the decision in Rode v Burwood Mitsubishi where is was held a valid reason must be “defensible or justifiable on objective analysis of relevant facts”.

 

Workplace bullying workplace harassment – Why has this research been done?

  • To better understand the prevalence of workplace bullying and harassment in Australian workplaces and to identify workplace risk factors associated with the occurrence of bullying and harassment.

What did we find?

  • Bullying was measured using both a widely accepted international definition and the Australian definition used by Safe Work Australia. The prevalence rates using the international and the Australian definitions were similar: 9.7 per cent and 9.4 per cent of Australian workers respectively reported they had been bullied in the last six months.
  • Of the seven types of harassment measured, the most common form of harassment experienced by Australian workers was reported as being sworn at or yelled at (37 per cent), followed by being humiliated in front of others (24 per cent).

What do the findings suggest?

  • Self-reported bullying is common in Australian workplaces and is associated with poor psychological health. Psychosocial Safety Climate (PSC) and psychosocial factors such as job demands, job control and job resources are also related to the occurrence of bullying and harassment.

You can download a copy of the report into Workplace bullying workplace harassment in pdf format – bullying-and-harassment-in-australian-workplaces-australian-workplace-barometer-results

Workplace bullying workplace harassment – Originally published at https://www.safeworkaustralia.gov.au/doc/bullying-and-harassment-australian-workplaces-results-australian-workplace-barometer-201415

A word doc version of the report can be downloaded from the link above.

An understanding Workplace bullying workplace harassment is vitally important for all organisations, failure to take action to prevent or respond can be costly and could constitute a breach of your duty of care. Australian Workplace Training & Investigation can assist with training and investigation of Workplace bullying workplace harassment issues. Please contact us or 029674 4279 or enquiries@awpti.com.au

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

Workplace Investigation Procedural Fairness

Workplace Investigation Procedural Fairness – Decisions at the Fair Work Commission where a lack of procedural fairness has proved is costly once again

Two cases before the Fair Work Commission once again highlight that organisations are still having dismissal found as unfair due to a failure to afford an employee procedural fairness

In Schneider v Eliana Construction and Developing Group P/L [2016] FWC 5748  23 August 2016, the applicant Mr Schneider was employed as finance manager; he was dismissed for unsatisfactory conduct. The respondent claimed actions of applicant in submitting BASS statements without Director’s approval caused significant harm to company.

The Commission found that there was no valid reason for dismissal, that the applicant was not put on notice that employment at risk concerning either conduct or performance, he received no written or verbal warnings made and that there was an absence of procedural fairness. It was held that the dismissal unfair and compensation of $16,816 was ordered.

In Moore v Specialist Diagnostic Services P/L t/a Dorevitch Pathology [2016] FWC 5910 23 August 2016, the applicant Ms Moore was employed from July 2003 until April 2016 as pathology collector and promoted to collections co-ordinator. According to a termination letter she was dismissed for failing to follow reasonable directions

The commission found that the applicant not given clear and unambiguous opportunity to respond to reasons for dismissal and that the respondent’s decision maker not given all information to make decision.

In finding that there was no valid reason for dismissal, that the dismissal harsh, unjust and unreasonable and that the applicant was unfairly dismissed the Commission found there was lack of procedural fairness and uncertainty regarding respondent’s reasons for dismissal compensation of $27,900 was ordered.

The lesson for employers

If termination is being contemplated as an option, employers should consider an investigation to establish the full facts of the matter and provide the employee with the opportunity to respond in a timely manner.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/

 

Investigating bullying

Investigating bullying – Why you should conduct a thorough and systematic investigation

An example of where a lack of investigation case was costly

 Investigating complaints made by employees in a thorough, professional and timely manner is a part of an employer’s duty of care and when considering the termination of an employee may form an important part of the process.

The case of Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62 illustrates an example of an unfair dismissal and the consequences of a lack of a proper investigation

The applicant Mr Harley was employed as a Business Development Executive at Aristocrat Technologies Pty Ltd (Aristocrat).

He had resigned after receiving a show cause letter from Aristocrat who claimed that he was under performing on sales targets and that there had been complaints about him from customers.

The applicant brought an unfair dismissal claim, claiming that he had been forced to resign as a result of a course of bullying and harassment engaged in by Aristocrat’s State Manager.

Commissioner Deegan agreed that the applicant had been constructively dismissed and that the dismissal was unfair.

He found that he had performed as well, or better, than most of the other business development executives during a difficult financial period and that he had been treated badly by the State Manager.

Significantly, he was highly critical of Aristocrat for failing to respond to the applicant’s harassment claims made against the State manager prior to his dismissal. He found that the human resources manager was “either uninterested in investigating the complaints properly or had no idea how to conduct such an investigation”.

The applicant was awarded 6 months’ salary in lieu of reinstatement.

This case is a strong reminder to HR professionals and managers to deal with employee complaints seriously and to conduct thorough investigations into complaints.

Link to case here http://www.austlii.edu.au/au/cases/cth/FWA/2010/62.html

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Workplace Bullying Myth Busting

Workplace Bullying Myth Busting – Instances of bullying in the workplace are an issue for many employers at some point especially if not managed correctly it can be very costly.  However a lot of the advice and suggestions for dealing with bullying while well-meaning simply do not work.

Let’s have a look at some of the common myths

Myth: You can eliminate bullying in the workplace.

Fact: Bullying is a human behaviour from the playground to the workplace bullies exist.  Is it unrealistic to believe bullying in a workplace can be completely eliminated but there are things you can do, some are effective, some are not.

What employers must ensure that they do is take ‘reasonable steps’ to stop or prevent bullying.

Myth: Having well written policies will stop workplace bullying.

Fact: Bullies ignore bullying policies, if they didn’t, they wouldn’t be a bully.

The well written policy helps to protect the employer should an alleged bullied employee make a negligence claim with regard to a breach of duty to maintain a safe workplace.

A well written policy is part of the ‘taking all reasonable steps’ defence and one of the first questions asked in a court of commission is “can you produce your bullying or workplace behaviour policy”

Not having a policy is a huge mistake, but a policy is not the be all and end all of an employer’s responsibility.

Myth: Conducting regular reviews on any anti-bullying related policies will help.

Fact: See above and again useful when arguing the ‘taking all reasonable steps’defence.

Myth: Communicate anti-bullying policies to all employees to emphasise that compliance is required.

Fact: That works well for those who are not bullies but again is ignored by the bullies.

Of course it does add to the ‘taking all reasonable steps’ defence when an employer is asked, “what have you done?”

Myth: Providing information and training to all employees about bullying will reduce bullying

Fact: That’s bit like saying publicising speed limits will reduce speeding when we all know that a speed camera or marked Highway Patrol car reduces speeding.

While this information and training may be ignored by the bullies it is a good opportunity to clearly define bullying and what is unacceptable conduct.

This works best if you are very clear about the repercussions for those who bully.

Make sure that there is accountability of attendance in the case of face to face training (my preferred method) or completion if it is online.

If a complaint is made having evidence that the bully attended training is very useful when it comes to taking disciplinary action and of course it also add to the ‘taking all reasonable steps’ defence.

So far most of the suggestions that I have seen may help to cover the employer but actually have little effect of the prevalence of bullying in the workplace.

 Myth:  Having a policy that states something like “in the first instance speak to the person bullying you and tell them how they are making you feel”.

Fact: Really, come on, not going to happen.

What you need is;

  • A trusted HR department or person that employees being bullied can come to and discuss the situation, seek help and get it
  • A trusted mechanism through which employees are able to make a complaint and know that action will be taken
  • An effective method of dealing with and investigating complaints
  • Trained HR professionals who can undertake a timely and efficient investigation or
  • A professional workplace investigator on speed dial (My number is below)

Myth:  The bully’s often aggressive persona and attitude makes them hard to deal with when trying to investigate complaints.

 Fact: Workplace bullies like the feeling of power and will often try to ‘Lord it over’and intimidate HR professionals.

In many cases I have been told by HR managers who have engaged me to conduct investigations that the perpetrator will be aggressive and difficult to deal with.  It’s funny how when I interview them in a formal manner they are often the opposite, often nervous, compliant and timid when they are out of their comfort zone and not able to flex their bullying muscles.

When bullies know that an employer is going to deal with them in a professional and formal manner the word gets out that bullying will not be tolerated and bullies will be dealt with.

Many workplace investigators are former police officers and are used to dealing with difficult people and they are not easily intimidated.

We refer to workplace investigations as the dark side of HR, as a manager or HR professional if you don’t want to walk on the dark side, call in an expert and save yourself the stress and know that we get it right the first time.

Workplace bullying myth busting

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Workplace Investigator – Why you should have a trusted one on speed dial.

Workplace Investigator – Having a relationship with a workplace investigator that can provide your organisation with benefits when it comes to;

Priority

Complaints, grievances and allegations of misconduct are stressful for everyone, the parties involved and the organisation.  You need to have these matters investigated in a timely and professional manner.  In addition to the disruption to the workplace, courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.

Having a relationship with a qualified and experienced Workplace Investigator will generally see you being given priority.  Recently I conducted interviews with 1 day of receiving instructions and interviewed some of the parties on a Saturday morning.

Quality

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an everyday basis, so in most cases when they engage an external investigator they really don’t know what they are getting.

When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed.

In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connect, please feel free to send me a request).

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationship.

Cost

While I cannot speak for others, I provide special rates for my on-going clients.  It’s worth noting that I have observed, the bigger the investigation company, the more they charge and cost is not actually an indication of quality.

Advise to businesses

If you don’t have a relationship with a qualified and experienced workplace investigator take the time to meet with and get to know one, it could save you a lot of time, stress and money in the long run.

Please feel free to download my professional profile – Professional Profile Phi O’Brien

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Support person – workplace investigation

Support person – workplace investigation – All you wanted to know about a support person but were too afraid to ask.

It should be noted that under Section 387 of the Fair Work Act, in subsection “(d) any unreasonable refusal by the employer to allow a person to have a support person present to assist at any discussions relating to dismissal may be considered as part of the criteria for considering harshness etc.”

Although the FWA refers to unreasonable refusal, I recommend always offering a support person to an interviewee whether it is in relation to a disciplinary or performance related matter. If they refuse record the refusal.

What is a support person?
Someone who attends the interview to provide emotional support to the interviewee if need be.

What is the role of the support person?
Generally it is to sit down and be quiet. However a support person can ask questions of the interviewer and in most cases can provide advice to the interviewee if appropriate but should not answer for the interviewee. They may also speak on behalf of the interviewee if that interviewee is not able to do so.

Please note under some EBA’s the support person mostly union representatives are provided with the authority to advocate on the employee’s behalf. If that is the case you can rest assured that the union rep will let you know.

Who can be a support person?
An adult not involved in the interview or investigation.

Can you refuse the interviewee a support person?
No, not unless you want to fall foul of s387 ss(d).

Can you decide who the support person can be?
No.

Can you decide who the support is not?
Yes, if the person is a witness in the matter, a co-respondent, a child or if the person is apparently unsuitable. In the case of union officials or other officials, if the proposed support person has been the support person for the other party in an investigation.

What happens if the support person is prompting the interviewee?
This can actually be helpful as they may have discussed the matter beforehand and the support person may be helping the interviewee to recall events. The interviewee may be nervous and could tend to forget certain details during the interview. Listen carefully, if it is getting out of hand stop the interview and ensure the support person is aware of their role and boundaries.

What happens if the support person is disruptive?
It is always wise to ensure that the support person is aware of their role and boundaries before commencing the interview. If the support person is disruptive during the interview I recommend the following:

  1. Stop the interview and ensure the support person is aware of their role and boundaries. You may have to do this more than once
  2. If the interview is becoming unworkable, stop the interview and re-schedule it. It might be wise at this time to discuss the choice of support person with the interviewee

Can I eject a support person from the interview if they are becoming too disruptive?
Yes but I don’t recommend it. It could be considered as falling under s387 FWA ss (d). Stop the interview and re-schedule it, discuss the choice of support person with the interviewee.

Can the interviewer have a support person?
Yes and I recommend it if you have a feeling that the interviewee may be difficult.

What can my support person do?
That depends, if they are a co-interviewer they should be taking notes and then ask questions that you may have not or questions that help to clarify matters.

If they are simply there to support you I recommend that your support person should also be taking notes.

Having a support person can help to ensure that complaints are not made against you in regard to the manner in which the interview was conducted.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/

Workplace Investigation

Workplace Investigation – what can you do with uncooperative parties during an investigation.

An issue that may be confronted during a workplace investigation is uncooperative parties, complainants, witnesses and the person subject of the complaint (generally referred to as the respondent).

Workplace Investigation – uncooperative respondents

It is important to be careful not to attribute blame or guilt when a person subject of a complaints or misconduct workplace investigation is uncooperative, you must keep an open mind.

Two crucial components of procedural fairness are:
(a) The respondent has the right to know the nature of the complaint or allegations made against them
(b) The respondent has the right to be heard (the right to respondent to the complaint or allegations made against them)

At times adhering to procedural fairness might mean having to be patient.

Generally responses from the person subject of a complaints or a misconduct workplace investigation will come either in written form or the participation in an interview.

Respondents may;

  • Refuse to respond
  • Delay the response providing various reasons why they have not responded
  • Continually ‘roadblock’ the investigation by being unavailable to be interviewed, cancelling interview appointments or not showing up.

What can employers do?

  • Set reasonable deadlines, but be patient and allow some latitude.
  • Listen and take account of the reasons for the cancellation of interviews or delayed responses
  • Re-schedule interview appointments when needed.
  • Work with the respondent, allow them time to prepare.

If the ‘stalling’ is without good reason and continues;

  • Set a final deadline, again be reasonable, (don’t rush the process) but remember that other people may be affected by the investigation and courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.
  • Advise the respondent that if they fail to respond or attend an interview by the deadline, the investigation will continue and that findings may be made on the information that you currently have on hand.

If the respondent continues to be uncooperative proceed with the investigation.

DOCUMENT EVERYTHING

Workplace Investigation – uncooperative complaints

Although less common than uncooperative respondents I have encountered situations where the complainant is uncooperative, this has been in cases where a written complaint has been made and then the complainant refuses to provide further information and/or be involved in the investigation.

This situation presents a number of problem, please refer to this article that reviews what to do when an employee does not want an investigation into their complaint? http://awpti.com.au/employee-investigation/

In this case I recommend that you proceed with the information you have and advise the complainant that the investigation will continue and that findings may be made on the information that you currently have on hand.

This can cause some difficulties in providing the person subject of the complaint with full details of the complaint or allegation, each case is different, please contact me for assistance phil@awpti.com.au

DOCUMENT EVERYTHING

Workplace Investigation – uncooperative witnesses

Unless you have something in your policy or Code of Conduct that compels employees (which I suggest would be rare) there is little you can do with uncooperative witnesses other than to discuss the reasons why they do not wish to cooperative and reassure them in relation to their concerns if you can.

Bottom line is generally you really can’t compel witness to be part of a workplace investigation.

Support people

Support people themselves are usually not uncooperative however 2 issues can arise usually from the perspective of the respondent;

(1) I can’t get a support person
(2) My support person is not available at…..

It is recommended that you are flexible and have some patience and understand that the support person may also need reasonable notice, however is it not reasonable to unduly hold up the investigation, it may be the case that the party will have to get a different support person.

As I previously stated it is important to remember that courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner and the Fair Work Commission will only take into account unreasonable refusal to allow for a support person.

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/

 

 

Discrimination Investigation Sydney 

Discrimination Investigation Sydney – Discrimination is any behaviour, practice or omission that makes distinctions between individuals or groups, so as to disadvantage some and advantage others.

Discrimination is unlawful on the grounds of:

  • Age
  • Carers’ responsibilities
  • Disability – physical or intellectual disability, HIV/AIDS
  • Gender
  • Irrelevant criminal record
  • Marital status, including occupation of spouse or partner
  • Parental status and carer/family responsibilities
  • Physical appearance
  • Political conviction
  • Pregnancy or potential pregnancy
  • Race, nationality or ethnic origin
  • Religious belief
  • Sexuality or sexual orientation
  • Social origin
  • Trade union activity
  • Transgender

Unlawful discrimination can take two forms:

1) Direct

2) Indirect

Direct discrimination

Is any action that excludes a person or a group because of an irrelevant personal characteristic, for example, an individual is treated less favourably on the basis of an attribute that the person may possess, such as race or disability.  Direct discrimination can include:

  • Not giving someone a promotion because of their gender
  • Forcing an employee to retire at 60 years of age
  • Employment advertising that has requirements, such as minimum age, which is not critical to the job

 Indirect discrimination

Occurs where a condition, requirement or rule is imposed, which on the surface is neutral or equal, but in fact operates in a way that discriminates against particular groups that have some characteristic in common (such as gender or national origin).  For example:

  • An advert that requires candidates to be 180cm tall for a certain job may be indirectly discriminating against most women
  • A requirement that everybody has to wear a company cap could be indirect discrimination on the grounds of religion. This is because members of some religions are required, as part of their faith to cover their head with particular headwear and wearing a cap would not be appropriate. This does not apply to appropriate and necessary safety wear
  • Removing the flexibility in start and finish times may discriminate against parents who are required to pick up children from school

Discrimination does not include

  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under a dispute resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

When investigating workplace discrimination it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conductingdiscrimination investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about discrimination investigations.

AWPTI provides professional discrimination investigations in a timely manner within your budget

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations

www.awpti.com.au
http://awpti.com.au/investigations/